On June 29, 2010, Governor McDonnell signed an important Executive Order (No. 14, 2010) to promote effective and least-burdensome regulation. The order sets out a general policy for executive branch agencies of the Commonwealth, and calls on them to follow a set of common sense principles of good regulatory practice. This order was clearly designed to prevent the sometimes-heavy hand of government from arbitrarily stifling small business and enterprise or interfering with personal freedom without achieving any compelling government interest.

The role of the Virginia government is to make the Commonwealth an even better place to live, work, and raise a family. It is not to shutter legitimate small businesses or to infringe on personal freedom based solely on ideology. Small businesses play a critical role in Virginia’s economy, and they are especially susceptible to the negative impacts of arbitrary government action.

Executive Order 14 laid out an extensive process for Virginia regulators, including a mandate to:

“. . . [Identify] the nature and significance of the problem a regulation is intended to address, including, where applicable, why private markets and institutions cannot adequately address the problem.”

“. . . [Identify] and assess the least costly means including reasonably available alternatives in lieu of regulation for achieving the goals of a regulation… [including] [the] use of information disclosure requirements, rather than regulatory mandates…”

“[Conduct regulatory development] in accordance with statutory provisions related to impact on small businesses.”

“. . . [Consider] the impact on existing and potential Virginia employers and their ability to maintain and increase the number of jobs in the commonwealth, as well as the cost of compliance by the general public.”

Regulations currently proposed under Senate Bill 924 merely pay lip service to these mandates and ideals. The Virginia Department of Health (VDH) did not identify any actual problem requiring the Commonwealth to intervene in private markets to crush twenty women’s health providers arbitrarily. VDH did not demonstrate any benefits whatsoever, much less benefits that could plausibly outweigh the enormous costs imposed. In some cases, VDH would force these clinics to spend over $2.5 million in the pursuit of literally zero benefits. And these cost estimates come from the Department of Health’s own analysis.

Most strikingly, given the crucial importance of small businesses to the Virginia economy, these regulations fail to offer any reasonable alternatives that might achieve the same goals. These regulations are designed to eliminate Virginia jobs, and to make Virginia women less safe and less free.

We call on the Governor, the Virginia Department of Health, its Board, and members of the Virginia Legislature to fix this regulation to ensure it complies with state statue and Executive Order 14. Specifically, we call upon the Department of Health to focus on informed disclosure instead of the current heavy-handed approach designed to regulate the widths of hallways, mandate special sink handles, and require awnings over the front doors, amongst others. These requirements are intended to apply only to the construction of new facilities, and the plain language of SB 924 does not extend them any further.[1] We are unaware of any situation in Virginia where a clinic’s sink handles, hallway dimensions, or door awnings have materially affected the life, health, or safety of any woman receiving care in an outpatient setting.

Regulation should protect the health and safety of citizens, and a modern regulatory system can ensure the best possible outcomes with the least possible burden. Executive Order 14 mimics the Federal framework for regulatory oversight that multiple Presidents from both political parties have upheld. This framework recently led the Department of Health and Human Services to actively reduce burdensome regulations for necessary health facilities when doing so would not harm the public interest (in one case providing relief from onerous sprinkler system regulations).

The Virginia Department of Health has never demonstrated that these facilities threaten the health or welfare of Virginia women. These regulations have no medical benefit, and VDH did not even attempt to claim that forcing these clinics to undertake millions of dollars of architectural tweaks would change patient outcomes at all. Meanwhile, this burdensome regulation may well result in the state achieving an effective ban on reproductive health services through regulatory fiat. No rational person would consider this “good government."

A well-functioning regulatory system is designed to work for all citizens. It is not the proper role of the Virginia legislature, the Department of Health, or the Governor himself to ban legitimate businesses arbitrarily based on ideology. No small business is safe if regulators can break their own rules in order to attack any small business at will.

We urge the Virginia government to follow its own principles of regulation and to stand up for everyone’s rights.

When our leaders break their own rules for regulatory procedure in order to pick winners and losers, we all lose.

[1] The Attorney General’s office is incorrect about the Board’s obligations in Virginia Code § 32.1-127.001. That section of the Virginia Code, enacted in 2005, has never been interpreted to require existing facilities to meet new construction standards, and a fair reading of its plain text provides no support for such a requirement. While § 32.1-127.001 states that the Board shall issue regulations for health care facilities, "consistent with the current edition of the 2010 Guidelines for Design and Construction of Hospital and Health Care Facilities,” the Guidelines themselves explicitly state that they are “intended as minimum standards for designing and constructing new health care facility projects.” Thus, the Board’s typical refusal to apply the Guidelines to existing facilities is “consistent with” the Guidelines.